What the panel ordered
The Appeals Board denied the defendant's Petition for Reconsideration of the Findings & Award & Order issued by the WCJ on January 12, 2022.
Defendant filed a Petition for Reconsideration challenging an interlocutory finding/order regarding applicant's entitlement to treatment outside of the medical provider network (MPN). The WCJ's decision included a threshold finding on injury AOE/COE, making it a final order subject to reconsideration. The Appeals Board applied the removal standard to the interlocutory issue and considered the WCJ's report in denying the petition.
What was disputed, and how it came out
Each issue the panel decided, with the reasoning it gave. An outcome is what this panel did on this record — not a rule, and not a prediction.
The Appeals Board applied the removal standard to the interlocutory issue of entitlement to treatment outside the MPN and found no significant prejudice or irreparable harm to defendant if removal was denied, and reconsideration would be an adequate remedy.
From the decision · page 2Although the decision contains a finding that is final, defendant is only challenging an interlocutory finding/order in the decision regarding whether applicant is entitled to treatment outside of the medical provider network (MPN). (See Babbitt v. Ow Jing (2007) 72 Cal.Comp.Cases 70, 78-79 (Appeals Board en banc) [applicant's substantive right to medical treatment is unchanged by the MPN statutes which "simply allow another method for providing that medical treatment"].) Therefore, we will apply the removal standard to our review. (See Gaona, supra.)
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
The WCJ's decision included a threshold finding on injury AOE/COE, making it a final order subject to reconsideration.
Favours neutral
This made the decision final and subject to reconsideration rather than removal, but the defendant only challenged an interlocutory issue.
From the decision · page 2Here, the WCJ's decision includes a finding regarding injury AOE/COE. Injury AOE/COE is a threshold issue fundamental to the claim for benefits. Accordingly, the WCJ's decision is a final order subject to reconsideration rather than removal.
The defendant challenged only the interlocutory finding/order regarding entitlement to treatment outside the MPN.
Favours Defendant prevailed
This limited the scope of the petition and led the Appeals Board to apply the removal standard rather than reconsideration.
From the decision · page 2Although the decision contains a finding that is final, defendant is only challenging an interlocutory finding/order in the decision regarding whether applicant is entitled to treatment outside of the medical provider network (MPN). (See Babbitt v. Ow Jing (2007) 72 Cal.Comp.Cases 70, 78-79 (Appeals Board en banc) [applicant's substantive right to medical treatment is unchanged by the MPN statutes which "simply allow another method for providing that medical treatment"].) Therefore, we will apply the removal standard to our review. (See Gaona, supra.)
The Minutes of Hearing showed no objection by either party to the framing of the issue regarding treatment outside the MPN, indicating no due process violation.
Favours Defendant prevailed
This supported the denial of the petition as there was no procedural defect in the hearing.
From the decision · page 2As discussed in the WCJ's report, the Minutes of Hearing from the trial reflect that the WCJ outlined the issue to be adjudicated as "Whether applicant can treat outside of the MPN based on alleged violation by defendant of AD regulations regarding implementation of their MPN." (Minutes of Hearing, January 11, 2022, p. 4.) Both parties' attorneys were asked to confirm if the stipulations and issues were stated correctly. (Id.) Defense counsel responded "Yes, Your Honor." (Id.) There was no objection by either party to how the issue was framed and the WCJ decided the issue as identified at trial. There was therefore no violation of defendant's right to due process. (See Rea v. Workers' Comp. Appeals Bd. (2005) 127 Cal.App.4th 625, 643 [70 Cal.Comp.Cases 312] ["Due process requires notice and a meaningful opportunity to present evidence in regards to the issues."].)
The Appeals Board found no significant prejudice or irreparable harm to defendant if removal was denied and reconsideration would be an adequate remedy.
Favours Defendant prevailed
This justified denial of the petition for removal and reconsideration was deemed sufficient.
From the decision · page 3Here, based upon the WCJ's analysis of the merits of defendant's arguments, we are not persuaded that significant prejudice or irreparable harm will result if removal is denied and/or that reconsideration will not be an adequate remedy.
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Cal. Code Regs., tit. 8, 10955(a)
Removal standard for interlocutory decisions
The Appeals Board will grant removal only if the petitioner shows significant prejudice or irreparable harm and that reconsideration will not be an adequate remedy.
From the decision · page 2Removal is an extraordinary remedy rarely exercised by the Appeals Board. (Cortez v. Workers' Comp. Appeals Bd. (2006) 136 Cal.App.4th 596, 599, fn. 5 [71 Cal.Comp.Cases 155]; Kleemann v. Workers' Comp. Appeals Bd. (2005) 127 Cal.App.4th 274, 280, fn. 2 [70 Cal.Comp.Cases 133].) The Appeals Board will grant removal only if the petitioner shows that significant prejudice or irreparable harm will result if removal is not granted. (Cal. Code Regs., tit. 8, § 10955(a); see also Cortez, supra; Kleemann, supra.) Also, the petitioner must demonstrate that reconsideration will not be an adequate remedy if a final decision adverse to the petitioner ultimately issues. (Cal. Code Regs., tit. 8, § 10955(a).)
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About this page
- A published decision of the California Workers' Compensation Appeals Board, taken apart by what it turned on. The Board publishes the decision itself; this page adds the extraction and quotes the passage behind every claim.
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